Editorial: Imitation game

Northern Pen

Published: Nov 21, 2017 at 10 a.m.

Diageo Canada vs. Heaven Hill Distilleries Inc. - Submitted

It’s a rum thing.

Literally.

Probably far more people will have a rum and Coke tonight somewhere in the Atlantic provinces than will ever read the lengthy Federal Court of Canada case Diageo Canada vs. Heaven Hill Distilleries Inc.

After all, the court case runs some 24,129 words, and centres on something that some might call an iconic image: the picture of Captain Morgan on a rum bottle. (If you feel so inclined, you can read it here.)

But you don’t have to — luckily, we read it for you.

In a nutshell, the trademark case comes down to two different rums: Captain Morgan, whose image of the pirate captain with one foot up on a barrel you’d probably recognize, and Heaven Hill’s Admiral Nelson brand rum, with its own pirate-like figure.

Company officials testified that 200 million bottles of Captain Morgan have sold in this country since 1994, with a sales value of close to $5 billion. You can understand why they’d be protective.

Make no mistake, this is big business, and the lawsuit was a window on that corporate world. Diageo argues it has used its Captain Morgan likeness, “on posters, tent cards, banners and other promotional items at bars and restaurants, by extensive print, television and internet advertising, by interactive engagement with ‘The Captain’ at bars, restaurants and major events such as the Calgary Stampede and the Tall Ships, by sponsorships with Hockey Night in Canada, the National Hockey League and various NHL teams, and by billboard advertising and outdoor signage. In the last 15 years or so … Diageo has spent about $150 million for promoting, marketing, and advertising its Captain Morgan rum products, and within the last year roughly $17 million was expended.”

Company officials testified that 200 million bottles of Captain Morgan have sold in this country since 1994, with a sales value of close to $5 billion. You can understand why they’d be protective.

Diageo actually found consumers who were confused between the Admiral and the Captain, especially because the admiral apparently wasn’t even depicted as he appeared once promoted to admiral: “Heaven Hill’s depiction of Admiral Nelson on its label as a young pirate-like character with an eye patch is so dissimilar to the actual historical character — who is older with grey hair, different attire, wearing a hat, and having lost an arm — that this further reflects Heaven Hill’s true intentions of trading upon Diageo’s goodwill and confusing consumers.”

(For word nerds, the fact that Captain Morgan’s legal team was Toronto’s Smart & Biggar was just a bit more of the fun.)

In the Navy, of course, an admiral easily outranks a captain.

In the courts, not so much.

The admiral went down to defeat, with the judge granting an injunction that went as far as to order all of the “bottles … packages, labels and advertising material in Canada” that bear the offending mark be destroyed.